JUDGMENT
1. I have beard Mr. Mridul Jain, learned Counsel for the petitioner and learned Public Prosecutor.
2. This is a bail application which has been filed by Laxman Singh for his release on bail pending trial of Sessions case No. 36/85 pending against him, in which he has been charged for the offence under Sections 302, 449 and 458, IPC and Sections 25 and 27 of the Arms Act. He moved before Sessions Court, Merta for the grant of bail but the Sessions Judge dismissed his application on 19th January, 1987. He has, therefore moved to this Court for grant of bail. The main contention of Mr. Mridul Jain is that charge had been framed against the petitioner by the Sessions Judge, Merta, on March 4, 1986 after the case had been committed to him by the Addl. Chief Judicial Magistrate, Merta on 19th December, 1985. The occurrence took place on 11th August, 1984. The petitioner was arrested on 20th September, 1985. Prior to that petitioner was absconding for more than one year, charge-sheet was filed before the Addl. Chief Judicial Magistrate in October, 1985 and the Magistrate had passed the committal order on 2nd November, 1985. It has been argued by Mr. Mridul Jain that the first date fixed for recording of prosecution evidence was 15th May, 1986 and till 11th March, 1987 i.e. for the last about 10 months, not a single witness has been examined by the prosecution in the Sessions case, pending before the Sessions Judge, Merta. The petitioner is already in jail for the last 1-1/2 years. It was contended that this fact alone entitles him to be released on bail because delay in trial without progress for about 11 months violates the fundamental right guaranteed by Article 21 of the Constitution to the petitioner as it deprives him of his personal liberty except in accordance with law. It was urged that provisions of the Cr. PC envisage speedy trial within a reasonable time and when the prosecution does not produce a single witness for about ten months, the petitioner becomes entitled to be released on bail and his fundamental right should be secured.
3. An interesting case came before the Full Bench of the Patna High Court in Madheshwardhari Singh v. State of Bihar reported in AIR 1986 Patna 326, judgment in which was delivered by his Lordship S.S. Sandhawalia, C.J. to illustrative of the poets’ hope of freedom slowly broadening down from precedent to precedent”. The significant issues which necessitated reference to the Full Bench were formulated as under:
(1) Whether the fundamental right to a speedy public trial enshrined in Article 21 of the Constitution by precedential mandate is confined to only offence or is attracted to all offences generically?
(2) Whether the aforesaid right to a speedy trial is applicable only to the proceedings in court strictest to sense or includes within its sweep the proceeding Police Investigation as well?
(3) Is a speedy trial equally mandated by both the letter and spirit of the Code of Criminal Proceedure, 1973?
(4) Whether the ratios in Ramdaras Ahir’s case (1985 Cr. LJ 584) and in Maksudan Singh’s case AIR 1986 Pat 8) (FB) are applicable equally to all offences and irrespective of the fact whether the proceedings are a trial or an appeal against acquittal?
(5) Whether an outer time limit to concretise the right to a speedy public trial is envisioned by principle of precedent?
4. His Lordship observed in para 9 of the reported judgment that in all criminal prosecutions, the rights to a speedy public trial is now an inalienable fundamental right of the citizen under Article 21 of our Constitution. That cannot be allowed to be whittled down on any whims ground of the horry origin of this right in the constitutional history of Great Britain and America nor considerations of affluence of developed countries are even remotely relevant or germane in this context. That this right to speedy trial delves deeply into the soul and spirit of the Anglo-American jurisprudence (which we have either inherited or borrowed from both in the fields of constition and the legal system) is indeed manifest. Chief Justice Warren, delivering the opinion of the United States Supreme Court in Peter H. Klopfer v. State of North Carolina (196″) 18 Law Ed. 2nd 1 : 386 US 213 stated that we hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. This right has its roots at the very foundation of our English Law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written. “We will sell to no man, we will not deny or defer to any man either justice or right, but evidence of recognition of the right to speedy justice” in even earlier times is found in the Assilze of Clarendon (1166). By the late thirteenth century, justices, armed with commissions of goal delivery and/or over and terminer were visiting the country side three times a year. These Justices, Sir Edward Coke wrote in Part-H of his Institutes “have not suffered the prisoner to be long detained, but at their next coming have given the prisoner full and speedy justice…..without detaining long in prison. In all capital or criminal prosecutions, the Viginia Declaration of Rights of 1776 provided a man both a right…..to a speedy trial.’ There is a societal interest in providing a speedy trial which exists separate from, and, at times in opposition to the interests of the accused.
5. In Hussainara Khataon v. State of Bihar , Bhagwati, J. (as he then was) observed that even under our Constitution though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by the Supreme Court in Menka Gandhi v. Union of India . In Menka Gandhi’s case Supreme Court had laid down that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to construe compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be reasonable, fair and just. If a person is deprived of his liberty under a procedure which is not reasonable, fair or just, such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Procedure prescribed by law for depriving a person of his liberty cannot be reasonable, fair or just unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonable quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 21. There can, therefore be no doubt that speedy trial and by speedy trial we mean reasonable expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.
6. Our procedural Law as amended contains certain provisions to lay down a reasonable, just and fair procedure. Section 173 of the Code of Criminal Procedure provides that every investigation shall be completed without unnecessary delay. As soon as the investigation is completed, Officer Incharge of the police stat on shall forward to the Magistrate his report. Section 309 of the Code provides that in every inquiry or trial, the proceeding shall be held as expeditiously as possible, and, in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined unless the Court finds the adjournment of the same beyond following day to be necessary for reasons to be recorded. Chapter XXXVI in the Code further highlights the importance of speed in this context by prescribing a period of limitation in the trial of offences as well. This enshrines the principle that delay would bar a prosecution, irrespective of the merits of the case. Thus, delay in a way is recognised as the denial of justice and beyond the prescribed period, it would entitle the citizen to claim his freedom and to remove the ever hanging sword of Damocles over his head. It is true that as a beginning, the limitation is confined to offences punishable upto 3 years and not beyond, but the principle enshrined therein is clear and categorical that the same is applicable to all offences of this class. Thus speedy investigation and trial are equally mandated by both the letter and spirit of the Code of Criminal Procedure, 1973.
7. There may be case where an accused may be himself responsible in a large measure for the slow pace of the case and he may himself adopt delaying tactics. Even then, it was stated by the Supreme Court in State of Bihar v. Uma Shankar Kotriwal that there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage. In Hussainara Khatoon v. State of Bihar (supra) Bhagwati, J. as he then was) observed that even a delay of one year in the commencement of the trial is bad enough, how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years.
8. The discussion may not be complete without reference to the decision of their Lordships of Supreme Court in S. Guin v. Grindlays Bank Ltd. (). In this case, one Mahindra Naryan Chowdhary, Operation Manager of the Grindlays Bank Ltd., had filed a complaint against the appellants that they had, without reasonable cause, obstructed the officers of the Bank, particularly. Shri G. Vaidya from lawfully entering the premises of the branch of the Bank and had obstructed the transaction of normal business of the said branch of the Bank and, therefore, they had committed an offence under Section 147 of the Indian Penal Code After trial, the Magistrate by his judgment acquitted all the accused persons in 1978. Against that judgment of acquittal, an appeal was filed by the said Bank before the High Court of Calcutta. It took six years before the appeal could be decided by the High Court. The Calcutta High Court held that the trial had missed the essence of the offences with which the appellants had been charged, therefore, there was failure of justice. The Calcutta High Court set aside the judgment of the acquittal passed by the Magistrate. Aggrieved by that, the appellants came before the Supreme Court. Their Lordships of the Supreme Court felt that whatever might have been error committed by the Magistrate in the circumstances of the case, it was not just and proper for the High Court to have remanded the case for fresh trial, when the order had been passed nearly 6 years before the judgment of the High Court. It was held that a fresh trial nearly seven years after the alleged incident was bound to result in harassment and abuse of judicial process. Their Lordships also mentioned in their judgment that the termination of the criminal proceedings in that way would secure the ends of justice as it would bring about reconciliation between the management and the employees and also put an end to a stale criminal proceedings in which the public had no longer sufficient interest. The case before Supreme Court was in relation to petty offence and was not related to capital offence.
9. The proceedings before the Sessions Judge, Merta goes to show that although, Harisingh, a witness was served for 1st July, 1986 but despite service he did not appear. Jalam Singh has also been served for that date, but he did not appear. Again for 18-9-1985 three witnesses, i.e. Jalam Singh Smt. Vijay Laxmi and Gopal Singh were served but despite service they remained absent. Other witnesses Hari Singh, Kundan Singh and Samunder Singh were also served for 13th September, 1986, but despite service they did not appear. Then for 28th January, 1987 Samunder Singh, Vijay Laxmi and Hari Singh had been served, but despite service, they did not appear on 28th January, 1987. Four witnesses were also served for 29th January, 1987 but they did not appear. Again summonses were sent for 15th Feb. 1987 but despite service of bailable warrants, Samunder Singh, Gopal Singh, Jalam Singh and Narayan Singh did not appear. For 10th and 11th March, 1987 none of the witnesses could be served and were reported to be out. Under Section 231 of the Code of Criminal Procedure, on the dates fixed for the last more than 10 months, the prosecution has not been able to produce a single witness in the case and the witnesses have not appeared repeatedly despite service of summons and bailable warrants. In such circumstances, it would be unfair and unjust to continue the petitioner to be in jail for no fault of his and without the fault. He has already been in jail for 1-1/2 years. The prosecution is not free to deprive the liberty of a citizen by denying him the speedy trial even of capital offence.
10. I am of the view that this is a fit case in which bail application should be allowed. It is ordered that if petitioner Laxman Singh s/o Amar Singh furnishes two sureties of Rs. 20,000/- (Rs. Twenty thousand only) each and a personal bond of Rs. 40,000/- (Rs. Forty thousand only) to the satisfaction of the Sessions Judge, Merta to appear in Sessions case No. 36 of 1985, pending in his Court on each date that is fixed in the said sessions case, he may be released on bail till the trial of the said Sessions case.
11. The Sessions Judge Merta, is directed to take due care and ensure the attendance of the witnesses even by issue of warrants of arrest because proceedings dated 17th February, 1987 goes to show that some of the witnesses had not appeared despite service of bailable warrants. Learned Sessions Judge did not issue warrant of arrest on 29 January, 1987 which he should have done. The sessions trial shall proceed day to day and it is enjoined upon the Sessions Judge, Merta to complete this session trial which has already lingered on for one year without any progress and decide the case expeditiously.